3 Big Ways ‘The Case of: JonBenet Ramsey’ Got It Wrong

From: Rolling Stone

From confirmation bias in the 911 tape analysis to dissecting an ‘appropriate’ response to death, how CBS’s documentary didn’t tell the whole story

This month, two new TV documentary specials about the unsolved murder of JonBenét Ramsey have aired in anticipation of the 20th anniversary of the six-year-old’s tragic and mysterious death on Christmas night, 1996. Viewers who hoped to learn conclusive proof of who killed the child beauty queen sometime after she was put to bed in her Boulder, Colorado, home were likely disappointed. Two decades later, and the debate over whether it was the Ramseys or an intruder rages on, with A&E and CBS taking startlingly different positions.

Though each promised new exclusive details, both programs largely relied on the available evidence gathered during the investigation and interviews with members of law enforcement involved in the original case. As was the case in 1996 – and every year since – the interpretation of that evidence remains at the center of this unsolved crime. A&E’s documentary, which maintained that the Ramseys were rightfully exonerated by DNA evidence in 2008, concluded that because the intruder theory was dismissed early on by Boulder police, there simply isn’t enough evidence to name a suspect without a complete reinvestigation.

A complete reinvestigation is what CBS’s The Case of: JonBenét Ramseypromised, but the only thing they delivered was a witch hunt that culminated in naming Burke Ramsey, JonBenét’s then nine-year-old brother, as her killer, and implicating John and Patsy Ramsey in a coverup. (Burke Ramsey, now 29, appeared on Dr. Phil last week in his first-ever public interview, and insisted that neither he, his father John nor his late-mother Patsy has anything to do with JonBenét’s death.)

Absent any new physical evidence or meaningful new witness statements, the fruits of this reinvestigation, led by former FBI agent and criminal profiler Jim Clemente and behavioral analyst Laura Richards, were almost entirely subjective, at times dangerously misleading and dependent on a flawed police investigation that will very likely never result in the killer being brought to justice.

Here, three big ways CBS mislead viewers with their reinvestigation into JonBenét Ramsey’s murder

Confirmation bias, selective hearing and the misleading 911 call analysis
The first step in Clemente and Richards’ reinvestigation was analyzing Patsy Ramsey’s 911 call, specifically an inaudible portion at the very end when the phone clicked but did not disconnect. Because the operator did not hang up, the call continued to record, but no one has ever been able to conclusively decipher the extremely muffled, inaudible voices heard faintly in the background.

But many have tried. One such example is the Aerospace Corporation, who in 1997, at the request of the Boulder Police Department, conducted a test of the 911 tape, but the results were never officially released. However, in 1998, the National Enquirer leaked the results, which were subsequently quoted in Larry Schiller’s 1999 bookPerfect Murder, Perfect Town: The Uncensored Story of the JonBenét Murder and the Grand Jury’s Search for the Final Truth, and former Boulder Police Detective Steve Thomas’s book,JonBenét: Inside the Ramsey Murder Investigation, in 2000.

Clemente and Richards made a vague reference to this analysis, but didn’t disclose that it had been leaked and that they were aware of its conclusions, as any investigator in this case surely is. Instead, they claimed they were going to use “more modern audio technology” to figure out how many voices were on the tape and what they were saying. Sitting in a recording studio, the pair listened as the engineer fussed with levels and knobs. As Clemente and Richards began to “figure out” what was allegedly being said and who was allegedly saying it, subtitles popped up on screen in a flagrant attempt to convince the viewers that they, too, could hear it. There were three voices speaking, they claimed, and one of them was Burke Ramsey, whom Patsy and John told investigators was asleep in his room the morning they discovered JonBenét was missing.

A cursory review of the Twitter reactions to this segment indicates that many viewers could not make out any of what Clemente and Richards claimed to hear. “In the headphones it was incredibly clear,” Clemente tweeted, the implication being that despite devoting substantial time to playing back the audio over and over again, viewers should just trust what Clemente and Richards said they heard.

The problem is, at least as far as the 911 call analysis goes, Clemente and Richards lost credibility by failing to disclose that the leaked results from the Aerospace Corporation’s analysis are word for word what they seemed shocked and awed to hear on the other end of those headphones. Here is what the Aerospace Corporation found in their analysis of that 911 call, according to a report in local newspaper the Daily Camera: “Those sources say enhancement of the tape reveals Burke’s voice in the background, asking his parents ‘What did you find?’,” the paper writes. “John Ramsey allegedly can be heard shouting to Burke, ‘We are not talking to you,’ and Patsy shouts ‘Oh my Jesus, oh my Jesus.'”

This is what Clemente and Richards concluded, verbatim. It’s not clear if and how their analysis is new or more advanced than what was done previously. Far more egregiously, not disclosing their knowledge of the conclusions of the Aerospace report misleads viewers about the purity of their own analysis by not addressing the significant risk of confirmation bias, the tendency to interpret new evidence as confirmation of one’s existing beliefs or theories – a factor in the vast majority of wrongful conviction cases. Witness identification, recall of memories, evidence collection and analysis and forensic testing can all result in misleading or false results if precautions are not taken to prevent it. At the very least, the risk that confirmation bias can lead to selective hearing should be considered when weighing the significance of Clemente and Richards’ analysis of Patsy Ramsey’s 911 call.

Instead, viewers were subjected to their herculean efforts to isolate, amplify and translate this supposed bit of muffled dialogue as if it was just as brand new to them. And then they presented their conclusions as proof that the Ramseys had lied, and used Burke’s alleged presence as an excuse to add him to their suspect list.

Dismissing the DNA evidence entirely
Some of the forensic scientists and experts Clemente and Richards assembled for their investigative team, including forensic pathologist Dr. Werner Spitz and forensic scientist Dr. Henry Lee, offered some interesting and credible assessments of the physical evidence. For example, Dr. Lee did a demonstration that showed how a blow from a flashlight found on the Ramseys’ kitchen counter could have caused JonBenét’s skull fracture. And both Dr. Lee and Dr. Spitz disagreed with Boulder County District Attorney Mary Lacy’s decision to exonerate the Ramseys in 2008 based on new DNA tests which revealed the presence of unidentified male DNA from a single source on both JonBenét’s underwear and leggings. Dr. Lee explained how touch DNA is so easily transferred that it can show up on a brand new pair of underwear straight out of its sealed packaging, so his belief that the presence of unidentified male DNA on a little girl’s underwear could have come from a factory worker was convincing.

However, just because the DNA is not proof of an intruder or proof of the Ramseys’ innocence doesn’t mean the touch DNA is completely useless either, as Dr. Lee claimed. Regardless of how CBS regards its investigation, this is still an unsolved murder, no one in the Ramsey family has been proven guilty in a court of law and the intruder theory has not been conclusively ruled out. The absence of proof is not proof of anything.

While touch DNA is easily transferred, there are still scenarios in which a specific DNA match would be regarded as extremely suspicious and should be pursued further. What if the DNA suddenly matched a child molester who had never worked in a factory that manufactured little girls’ underwear and had no reason to have ever come into contact with JonBenét, her new underwear or any of her other belongings that the DNA might have transferred from? Touch DNA alone is not a reason to convict, but it shouldn’t be ignored as an investigatory lead. Dr. Lee’s bizarre conclusion essentially invalidated the usefulness of touch DNA in all criminal cases.

Overselling linguistic forensics and behavioral analysis as conclusive
Time and time again, Clemente, Richards, former FBI “linguistic profiler” James Fitzgerald and former FBI statement analyst Stan Burke, reached certain conclusions based on highly subjective analysis of the vocal inflections, body language, pronoun use, linguistic phrasing and human behavior exhibited by the Ramseys during the investigation. Everything from Patsy Ramsey referring to herself as “the mother” in the 911 call, to John Ramsey’s decision to pick up his dead daughter’s body, to the “appropriateness” of Burke Ramsey’s response to her death was scrutinized through the lens of the investigators’ “expertise.”

The Case of never made it clear that these areas of forensic science and behavioral analysis are viewed by the courts with varying degrees of acceptability and reliability, and with very good reason. Human behavior and language is not one-size-fits-all, especially with the introduction of trauma. Jim Clemente voicing his opinion that Burke didn’t respond or emote “appropriately” seems irresponsible, especially when presented as evidence of guilt.

The admissibility of linguistic forensics and behavioral analysis testimony is subject to a set of standards that may limit its scope or forbid it entirely in a court of law. In criminal cases, these methods are more likely to be used to eliminate potential suspects – not presented as proof of someone’s guilt.

Alas, the social media response to The Case of has been flooded with comments about how Burke is “weird” and “a total psychopath” who is “obviously guilty.” For Clemente and his team to stoke that mentality without any caveats has repercussions that go beyond this case. Human beings are naturally inclined towards relying on their emotions and intuition, so expert testimony and evidence that is informed by subjective assessments of what is and isn’t normal behavior can be incredibly convincing.

Moreover, Clemente and Richards presented themselves and their team of investigators as infallible, their expertise as inarguable and their opinions as indisputable facts. More than once, they made unproven, disputed or misleading statements without providing further evidence, like the claim that John Ramsey disappeared for an hour and a half the morning of the murder – in actuality, he was in his study and the Boulder police just didn’t notice. They also rushed to disprove alternate theories. After one attempt to get through a replica model of the basement window, Clemente and Richards concluded there could not have been an intruder because the spider web in the corner was “destroyed” and the real spider web in the Ramseys basement window was undisturbed.

Yet when laying out their theory for Burke Ramsey as the killer, these experts literally made up a story about Burke killing JonBenét (on accident or in anger, but probably unintentionally) by hitting her in the head with a flashlight because she took a piece of his pineapple. The proof? JonBenét had undigested pineapple in her stomach. Even if this theory had been proven back in 1996, at age nine, Burke would have been too young to be legally prosecuted in Colorado, and he certainly couldn’t be held responsible for any horrendous cover-up instigated by his parents. To unleash a witch hunt on him now without rock solid proof of guilt is a cruel ratings ploy.

CBS included a disclaimer at the end of their closing credits which acknowledged that the “opinions and conclusions … about how [the crime] may have occurred represent just some of the a number of possible scenarios,” and encouraged viewers to “reach their own conclusions.” This bare minimum of legal cover may be just enough to protect CBS from John Ramsey’s inevitable lawsuit – as his attorney Lin Wood has already suggested is in the works – but it likely went unnoticed by viewers. The repercussions of depending on such controversial evidence go beyond this case, as jury members (the majority of which are not educated in the law) are often asked to weigh similar evidence and testimony when deciding guilt or innocence. The Case of oversold the same flawed methodology that has manipulated juries and resulted in countless wrongful convictions, coupled it with cherry-picked evidence and an extreme case of tunnel vision in order to finger a nine-year-old for a 20-year-old cold murder. That’s disturbing and irresponsible, no matter who killed JonBenét Ramsey

Calls for limits on ‘flawed science’ in court are well-founded: A guest post

From: The Washington Post

A White House advisory council on Tuesday issued a report urging federal prosecutors and judges to tread cautiously around forensic science on bullet markings, bite marks, tire tread marks and complex DNA samples, saying the science on them has not been proven by testing and research. The Post’s Spencer Hsu has the full story here, including strongly dissenting views from police and prosecutors’ groups, and the report from the President’s Council of Advisors on Science and Technology is included at the bottom.

University of Virginia law professor Brandon L. Garrett, who has written a book on flawed forensics and wrongful convictions, titled, “Convicting the Innocent: Where Criminal Prosecutions Go Wrong,” argues that the council’s report is well-founded and supports a 2009 National Academy of Sciences report that much of forensic evidence used in criminal trials is “without any meaningful scientific validation.”

By Brandon L. Garrett

“They weren’t looking for the truth. They were looking for a conviction,” Keith Harward said after he was exonerated. “They need to stop this stuff.”

Harward served 33 years in prison in Virginia before his exoneration on April 8 for a Newport News rape and murder that he did not commit. He was originally convicted based on false testimony by two experts claiming his teeth matched bite marks on the victim. If it were up to him, such unreliable forensics would be banned.

In a remarkable report released this morning, the White House’s Council of Advisors on Science and Technology prominently called on prosecutors to do just that: stop using unreliable forensics and stop making unscientific claims about the forensics. The administration’s recommendations are an important step toward safeguarding forensics and preventing tragic wrongful convictions.

After all, at Harward’s trial, it wasn’t just that the experts were wrong. They were spectacularly wrong. Yet they told the jury that they were totally certain they were right. One dentist testified to “a very, very, very high degree of probability those teeth left that bite mark.” A second dentist testified that “there is just not anyone else that would have this unique dentition.”

They were both wrong — and it gets worse. In a massive dental dragnet, police took over 1,000 molds of every Navy sailor on a ship docked at Newport News. One of those sailors was the actual culprit, but the bite experts didn’t detect him — DNA tests identified him 33 years later.

Stopping the use of unreliable forensics like bite-mark evidence is just the beginning. Despite depictions on shows like “CSI,” many types of forensics can provide valuable information but can also go wrong. Jurors understandably place great weight on testimony by an expert who claims to have found a match. But jurors might think differently if they heard about the real error rates for forensics.

Any human technique has an error rate, and a crucial quality control is to do testing to find out how good experts really are. It is not enough for fingerprint or bite-mark examiners to vouch for their own reliability. We must put their experience to the test. The few tests that have been done show disturbing error rates. For example, the White House report highlights a study showing a 1 in 18 error rate for fingerprint comparison and another showing a shocking 1 in 6 error rate for bite marks.

Cases like Harward’s are not isolated examples. Having read trial transcripts of DNA exonerees by the hundreds, I have found that more often than not, the testimony was exaggerated, overstated and erroneous. Of the first 330 people exonerated by DNA testing, 71 percent, or 235 cases, involved forensic analysis or testimony. DNA set these people free, but at the time of their convictions, the bulk of the forensics was flawed.

It has taken too long to respond to a national crisis of bad forensics. A 2009 report by the National Academy of Sciences concluded that much of forensic evidence used in criminal trials is “without any meaningful scientific validation.” Little changed. To be sure, scientists and researchers have made strides to improve forensics and how they are used in courtrooms; I have taken part in such efforts. However, the White House is right that seven years later, it is time for the use of flawed forensics to come to an end.

Here is the full report:

Pcast Forensic Science Report Final by Tom Jackman on Scribd

 

Mark Norwood Convicted of Murder After Eluding Justice in Earlier Murder

On Friday, a Travis County (TX) jury found Mark Norwood, 62, guilty of the 1988 bludgeoning murder of Debra Baker. Norwood was at liberty to commit Debra’s murder, because he escaped justice in the similar murder of Christine Morton two years earlier. Both victims lived in the Austin area.

Christine’s husband, Michael, was wrongfully convicted of his wife’s murder and spent nearly 25 years in prison. Among the many sad outcomes of this wrongful conviction was that the Morton’s three-year-old son Eric lost both his mother and, for 25 years, a normal relationship with his father.

If evidence supporting Michael Morton’s innocence had been shared with the defense, which is required of prosecutors, it is less likely he would have been convicted. The jury did not know that a bloody bandana was found the day after Christine’s murder outside the Morton home along a likely escape route from the property.

The jury didn’t know that little Eric was present during his mother’s murder. He told his grandmother his father wasn’t home and “a monster” was hurting his mommy. Continue reading

Junk Science Reigns ____ So Much for True Science in the Courtroom

We had hope, back in 2009, when the National Academy of Sciences report Forensic Science in the United States; A Path Forward was published, that there might finally be some remedy for all the junk science being used to convict innocent people. The report painted a scathing picture of the lack of true science contained in, and the invalidity of, traditional forensic disciplines; the sole exception being DNA. The report did spawn the creation of the Federal Commission on Forensic Science, which has proven, over the last three years, to be a totally toothless tiger, accomplishing essentially nothing.

Now recently, the President’s Council of Advisors on Science and Technology has issued an additional report that is highly condemning of current forensic practices. You can see the PCAST report here:  pcast_forensic_science_report_final

HOWEVER, even in light of this recent report, both the FBI and the Department of Justice have stated they have no intention of changing the way they currently address forensics.

Please see the Intercept article, FBI AND DOJ VOW TO CONTINUE USING JUNK SCIENCE REJECTED BY WHITE HOUSE REPORT, by Jordan Smith here.

Nothing to Smile About: Bite Mark Evidence Blasted Again

Your smile could cost you your freedom.

Just ask Crystal Weimer from Pennsylvania, or William Richards from California.  Weimer and Richards don’t know each other, but their fates were eerily and tragically similar.

Both were tried and convicted of murder in unrelated cases.  Both of their convictions were based on testimony by so-called bite mark experts, who claimed to have matched marks found on victims with each of the defendant’s “bite mark.”  In both cases, the prosecution relied heavily on the “matching” bite marks as proof of the defendants’ guilt.  In both cases, the bite mark evidence was just plain nonsense.

A new report released this week by the President’s Counsel of Advisors for Science and Technology (PCAST), offered yet another devastating critique of bite mark evidence:

available scientific evidence strongly suggests that [bite mark] examiners not only cannot identify the source of bite mark with reasonable accuracy, they cannot even consistently agree on whether an injury is a human bite mark. For these reasons, PCAST finds that bite mark analysis is far from meeting the scientific standards for foundational validity.

PCAST, an advisory group appointed by the President and made up of the nation’s leading scientists and engineers, suggested that bite mark analysis was unlikely to be “salvageable” as a forensic methodology and that scarce forensic resources should be devoted elsewhere.

The PCAST report adds to the chorus of experts that put bite mark evidence in the junk science category.  In 2009, leading scientists from the National Academy of Sciences issued a report condemning bite mark evidence as highly unreliable.

But despite all the criticism from top-notch forensic experts, bite mark evidence has not been banned from the court room.

Which means that innocent people could wind up in prison for crimes they didn’t commit based on “science” that isn’t scientific at all.

In June, 2016, both Weimer and Richards were exonerated – just one day a part.   As it turns out, the bitemark evidence that put them in prison was just plain wrong.  Collectively, they spent nearly thirty years in prison.

And that is nothing to smile about.

 

 

 

 

Mike Pence Delays Pardon Decision: Innocent Man Struggles with Undeserved Felon Label

The Chicago Tribune has reported that Indiana Governor Mike Pence will continue to delay a pardon decision that would clear the name of a man convicted of and imprisoned for 10 years for a 1996 armed robbery he did not commit. The governor’s general counsel indicated in a letter Tuesday to Cooper’s lawyer that they first must exhaust all judicial options for appeal.

The case against Keith Cooper, 49, fell apart when DNA testing of crime scene evidence linked to a man imprisoned for his part in a subsequent 2002 murder. Eyewitnesses and a jailhouse snitch implicating Cooper and his co-defendant also recanted.

The Indiana Parole Board unanimously recommended more than two years ago that Pence pardon Cooper. The original prosecutor and crime victim shot during the burglary have also urged Pence to grant the pardon. More than 105,000 people have signed a petition supporting the pardon. Continue reading

Tuesday’s Quick Clicks…

Justice System Out of Control —- If You Change a Baby’s Diaper in Arizona, You Can Now be Convicted of Child Molestation.

This from a recent story on Slate by Mark Joseph Stern: “The Arizona Supreme Court issued a stunning and horrifying decision on Tuesday, interpreting a state law to criminalize any contact between an adult and a child’s genitals. According to the court, the law’s sweep encompasses wholly innocent conduct, such as changing a diaper or bathing a baby.”

Not only that, but this law places the burden upon the accused to prove that there was no sexual intent. This throws presumption of innocence (innocent until proven guilty) out the window!

“Arizona prosecutors can now dangle the threat of a probable child molestation conviction to coerce any parent of a young child into taking a plea deal on unrelated charges. With the state Supreme Court’s help, Arizona’s child molestation laws have been weaponized into a tool for prosecutorial harassment, allowing the state to target any parent or caregiver—out of spite or malice, or simply to boost their conviction rates.”

Arizona has, once again, proven that the inmates are truly running the asylum. This is so absurd, it would be laughable – if it weren’t so tragic.

Please see the full story on Slate by Mark Joseph Stern here.

Thursday’s Quick Clicks…

Australia – still reliant upon flawed policing techniques.

7762600-3x2-940x627Australia is viewed by many as an idyllic continent, where people can feel safe, and the rule of law prevails. Yet despite being a first world nation, policing can often be outdated and primitive. The use of paid-informants, and the reliance upon supposed ‘jail-house’ confessions has been known to cause wrongful convictions for decades. Yet as recently as 2009, the police of New South Wales used a paid informant to secure a confession from a young vulnerable Sudanese refugee. This supposed confession was obtained while the young man believed the informant had been brought to him to offer support during questioning by the police.

Such tactics not only smack of the worst kind of trickery, they also provide the flimsiest of evidence upon which to base a prosecution. However, this is exactly what the prosecution in the murder case against JB – a Sudanese refugee aged 15 at the time – did. Not only did they rely upon this evidence, they then proceeded to cover it up. It was not disclosed at trial, nor at a subsequent appeal, that the man known as A107 was a police informant, who then avoided his own criminal charges after this assistance with the case against JB.

There is now – belatedly – an inquiry into the police – including the ‘editing’ of contemporaneous notes – and the prosecution (for non-disclosure). This comes 7 years after the jailing of an innocent teenager. The inquiry should be asking why the police, as recently as 2009, were using such methods to try and obtain confessions, and then conspiring to cover their methods up.

Read more here:

Probe launched into wrongful conviction of Sudanese refugee jailed over Edward Spowart murder

 

Tuesday’s Quick Clicks…

Jim Petro commentary: Death penalty is in decline, but problems remain

Jim Petro, former Ohio attorney general, comments today in the Columbus Dispatch on problems with Ohio’s death penalty, including unaddressed recommendations to reduce the risk of executing the wrongly convicted…

Columbus Dispatch

Friday’s Quick Clicks…

Could Jerry Sandusky be innocent?

What if Jerry Sandusky didn’t do it? Hard to believe, right? The evidence against him seemed to be overwhelming. But was it really?
Author Mark Pendergrast argues that much of the sensational 2012 child-abuse case against the notorious former Penn State assistant football coach hinges on flawed repressed-memory theory. In a commentary for The Crime Report here, Pendergrast says it is relatively easy to generate false memories of abuse and documents how that may have occurred in this case.

Wednesday’s Quick Clicks..

Tuesday’s Quick Clicks…

Governors Should Take Pardons Seriously

A commentary published on September 1 in the Columbus Dispatch

 

Child Abuse Pediatricians: An “Ethically Bankrupt” Profession that Destroys Families

You may, or may not, have noticed that for quite some time, I have withdrawn from writing about SBS-related cases and issues (shaken baby syndrome). The reasons for this are many, complicated, and really of no consequence to the reader. However, a recent article about the role that child abuse pediatricians (CAP’s) play in these travesties of justice demands widespread exposure.

Please see our earlier post:  The Child Abuse Pediatrician (CAP) – Just Another Term for Medical “Cop.”

The recent article by Monica Mears for the Health Impact News goes to the heart of the problem with CAP’s. This from the article: “More shocking are the many ways in which the medical profession and its child abuse pediatric specialty hide stereotyping, arrogance, abuse of authority and twisted “science” when it claims to “diagnose” child abuse – which is in fact a legal allegation, not truly a medical diagnosis.”

Please see the powerful and compelling  Health Impact News  story by Monica Mears here.

 

Wednesday’s Quick Clicks…

Angela Corey, FL 4th Judicial Circuit State’s Attorney, Defeated in Primary

Anyone who has followed my stuff on this site knows that prosecutors are not my favorite people. This is not because they are inherently bad, evil people, but it’s because of what the structures and incentives of the justice system turn them into – personally ambitious and politically motivated inquisitors with practically ultimate power and little regard for true justice.

As I’ve studied prosecutorial abuses of the justice system over the last eight and a half years, there are two prosecutors that emerged as what I would term the “most vicious.” Those would be Anita Alvarez (Cook County, IL – Chicago) and Angela Corey (Florida 4th Judicial Circuit).

Anita Alvarez was defeated in her primary re-election bid last March. See our previous story on this here.

I can now also report that Angela Corey has lost her primary re-election bid to a challenger by a margin of 64% to 26%. Corey’s most infamous cases include the failure to convict George Zimmerman for the shooting death of Trayvon Martin and the unfortunately successful and ugly conviction of Marissa Alexander for firing a warning shot at her abusive boyfriend. Please see the USA Today story here.